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December 20, 2012
McNair-NCAA file stays sealed
USC fans will have to wait. So will anyone who believed NCAA Pres. Mark Emmert's pledge to make his organization "transparent."
But not in the Todd McNair case where the NCAA requested, and was granted, a stay of LA Superior Court Judge Frederick Shaller's Nov. 21 order to unseal the file in 30 days, which would have been Friday.
The latest order by Shaller now seals the file until the state Appellate Court rules on the NCAA's appeal, yet to be filed, of his strong denial of the NCAA's anti-SLAPP motion to dismiss the former USC assistant football coach's lawsuit against the organization that found him guilty of unethical behavior.
Estimates of the time that could take are from six to 12 months although it's not absolutely clear from the order whether the two parts of the appeal will be decided at the same time or could they be separated.
Here is the key part of Shaller's newest order:
"The Documents lodged conditionally under seal by both parties in connection with the NCAA's special motion to strike may not be filed by the Court unless and until (1) there is a final appellate court ruling affirming this court's November 21, 2012 ruling denying the NCAA's motion to seal and (2) unless the NCAA informs the clerk in writing within ten days thereafter that the record should be filed."
It should be noted here that this development should not be considered in any way a setback for McNair's lawsuit which received a major boost last month when Shaller said the NCAA investigators were "over the top" and "malicious." And that after reviewing emails from NCAA personnel and investigators as well as Committee of Infractions and Appeals members, Shaller said they "tended to show ill will or hatred" to McNair.
The NCAA originally requested to seal the court record since it promises confidentiality to participants in its investigative/enforcement/infractions cases. But the problem with that line of argument in this case is that all the witnesses are known publicly. And once the notice of allegations is filed, confidentiality no longer applies.
Then there's this: Much of this record apparently involves emails from NCAA staff personnel and committee members to one another and there is no confidentiality promise there, either.
In the Nov. 21 hearing, Shaller said: "I understand [why] the NCAA wants to keep this quiet . . . But I'm not going to seal the record . . . I know you guys are going to appeal it but from my part . . . there's no reason to seal it . . . I think the public has a right to know."
To that point, there is the potential for intervention here as happened in the Florida State/NCAA case when a First Amendment lawsuit in 2009 by the Associated Press and other media organizations prevailed against the NCAA. The NCAA was attempting to keep a 695-page transcript of a Committee on Infractions hearing confidential, saying its proceedings were not subject to open records laws.
But the court ruled the material was of public interest and should be released over the NCAA's strenuous objections. It's a precedent that might be applicable here should interested media organizations attempt to force this information to be made public by filing a similar lawsuit.
Dan Weber covers the Trojans program for USCFootball.com. You can reach him at firstname.lastname@example.org.